MUHAMMAD KANI ROWTHER Vs. ABDUL RAHIMAN ROWTHER
LAWS(KER)-1968-3-8
HIGH COURT OF KERALA
Decided on March 08,1968

MUHAMMAD KANI ROWTHER Appellant
VERSUS
ABDUL RAHIMAN ROWTHER Respondents

JUDGEMENT

- (1.) THIS appeal is by plaintiffs 1 and 5 in O. S. No. 18 of 1961 on the file of the Subordinate Judge of Palghat. The plaintiffs the first defendant and one Shahul Hameed, who died on 15-1-1951, are brothers. The suit was one for partition of the properties which stood in the name of deceased Shahul Hameed, on the allegation that they belonged to all the brothers in equal shares. The second defendant is the widow of Hameed. On 19-12-1959 Shahul Hameed executed a deed of settlement, Ext. B-1, settling the said properties for charity. The plaintiffs contended that Ext. B-1was vitiated by undue influence and fraud, and that at any rate it did not create a valid wakf. The suit was contested by defendants 1 and 2. The second defendant withdrew her contention subsequently and supported the plaintiffs. It is not therefore, necessary to refer to her contention. The first defendant contended that the properties belonged solely to deceased Shahul Hameed, and that he executed Ext. B-1with his free consent, that it created a valid wakf, and that the plaintiffs were not entitled to partition of the plaint properties. Both the lower courts found that the properties belonged wholly to Shahul Hameed, and that Ext. B-1 was not vitiated by undue influence or fraud. But the trial court held that Ext. B-1 did not create a valid wakf under Muhammadan Law; and accordingly it passed a preliminary decree for partition. The lower appellate court disagreed with the above view, and dismissed the suit. Plaintiffs 1 and 5 have, therefore, filed this Second Appeal.
(2.) THE learned counsel for the appellant contended that ext. B-1 did not create a valid wakf for the reasons: (i) THEre is no dedication of the properties for charitable purpose, and (ii) THE objects of the settlement are vague and incapable of enforcement. In order to deal with the above contentions, it is necessary to refer to the provisions of the document. Ext. B-1is called a deed of settlement; and it has got a schedule consisting four items of immovable properties. THEse are the properties in schedule A of the plaint. Ext. B-1states that the executant has no children, and his wife is staying with him. THE next clause in the document is the most important one; I shall extract the same. This means that the above said properties are settled and set apart by this document for carrying out the things mentioned thereunder. THEn it contains the following provisions: 1 A madrasa (Muslim religious school) should be conducted in the first item of the properties for imparting religious education to the muslim children. For this purpose, a molla (religious teacher) should be appointed, and the children should be properly taught. THE salary of the teacher and other expenses for conducting the school should be met out of the rent income of item No. 4 of the properties, after paying the taxes and the repairing expenses of the said property. 2. THE balance income may be taken by the manager for the time being, as remuneration for his work. 3 THE executant would carry on the management of the properties and conduct the school and meet all the expenses therefor, till his death. 4. After his death, his younger brother, Abdul Rahiman shall take possession of the properties, manage them and conduct the aforementioned things. After the death of Abdul Rahiman, his eldest son would be the manager; and thereafter the eldest son of the manager for the time being would succeed the manager on his death. 5. THE executant's widow would be entitled to stay in his residential house (item No. 1) and she should be paid during her life a sum of rs. 35/- per month for her maintenance. 6. THE managers, who succeed the executant, would not have any right to charge the properties for any debt or otherwise deal with them, or default the performance of the matters mentioned therein. The learned counsel contended that a wakf would not be created, unless there is a permanent dedication of the properties for charitable purposes, which meant divesting of the ownership of the properties by the executant. He submitted that Ext. B-1 doer not evidence any dedication of the properties. He pointed out that it was executed, while Shahul Hameed was a patient in the hospital, that there was no possibility of his conducting a religious school during the time he was in the hospital, and that after that also, he did not conduct any school. But he was in the hospital only for a very short period; and he lived for more than one year, after coming out of the hospital. The evidence as to whether he conducted a school till his death is conflicting. On behalf of the first respondent, it was pointed out, that on 18-6-1956, when shahul Hameed went to Mecca, he executed a deed, Ext. B-2, empowering his wife and the first respondent to manage these properties during his absence, and directing that, in case he did not happen to return, the said properties should be held by them for conducting a Muslim religious school. His learned counsel submitted that Ext. B-2 clearly indicated the intention of Shahul Hameed to create a wakf in respect of these properties for the above purpose. In my opinion, the question whether Ext. B-1 creates a valid wakf under law is a pure question of construction of that document. The previous and subsequent conduct of the executant as well as the circumstances attendant with its execution can be relevant in interpreting the document, if its provisions are ambiguous, and not clear. None of these things is relevant, if the language of the document is clear. The language employed in Ext. B-1 is very plain; it settles and sets apart the properties for carrying out the things mentioned therein. It provides that the executant would during his life function as a manager and carry out the said purposes. It also provides for management of the properties and carrying out these purposes in perpetuity. The income of these properties are to be spent for conducting a religious school. A monthly allowance is directed to be given for the maintenance of the executant's widow, and the manager is empowered to take the balance for his remuneration. These provisions clearly divest the executant of the document of his ownership of the properties; and they stand dedicated in perpetuity for the charitable purpose mentioned therein. It was also submitted by the learned counsel that there was no mention in Ext. B-1 of the income of items 2 and 3 of the properties or about its utilisation, and that there was no dedication of the said properties for charity The judgment of the lower appellate court shows that a receiver was appointed for the properties in Ext. B-1, and that, according to the receiver's accounts, the income from items 1, 2 and 3 was scarcely sufficient to pay the taxes and meet the maintenance expenses of the said three items of properties. That means that there was no scope for the executant to make any special mention about the income of these three items of properties. Whatever it may be, the provision in Ext. B-1is clear to the effect that all the properties described in the schedule to the document are settled and set apart for the charitable purposes mentioned therein. The next question for consideration is whether Ext. B-1is void for uncertainty. The learned counsel submitted that the charitable object mentioned in Ext. B-1 is only illusory, that it was executed as a device to settle the properties permanently in favour of the first defendant and his descendants, that under the terms of this document, it was permissible for the manager to appropriate practically the whole income of the properties, after spending something nominal for conducting a religious school. He submitted that the deed does not provide how much money or what portion of the income should be spent for the above purpose, that if the manager provided for giving religious education only for two children, it would satisfy the provisions of the document; and that the provision for charity was thus uncertain, and incapable of enforcement. At first, it appeared to me that this contention has some force; but on a closer examination of the law on the subject, I have come to the conclusion that the appellant cannot succeed. The same question arose for consideration before the Privy Council in Ramanandan Chettiar v. Vava Lovvai marakayar ILR. 40 Madras 116. In that case, two-thirds of the net income of the properties in respect of which the trust was created were directed to be spent for performing annual ceremonies of the ancestors, for giving charity in the month of Ramzan, and the surplus for being divided equally once a year among the descendants of the executant. No amount was ear-marked for anyone of the above three purposes, nor did the document contain any indication as to how much must be spent for each of these objects. It was a document executed by a mussalman; and it was contended that it did not create a valid wakf, as the objects provided therein were incapable of execution. The Privy Council, in rejecting the contention, said: "it is next urged on behalf of the appellant that, inasmuch as no particular sum is named which the trustees are required to spend on any or on all the charitable objects mentioned in the deed, they may spend on them as much or as little as they please, may, if they feel inclined, in fact, starve these charitable trusts, and that therefore the provision for charities is illusory Well, their Lordships cannot at all take that view of the powers and duties of the trustees. As far as the fatcha is concerned, it is to be the "customary" ceremony that the trustees are to perform without fail. Part of that ceremony is to feed the poor. The trustees are, in their lordships' view, at the least bound, so far as the funds under their control will permit, to make such provisions for the other charities as in the circumstances of the case a pious and charitable Muhammadan would consider reasonable and proper; and it is not disputed that, if the trustees failed to perform their trust the Advocate-General, or some other authority having control over the administration of charities, could in a Court of law compel them to do their duty and secure the due administration of the trust fund. " Reference may also be made to the decision of a Division bench of the Calcutta High Court in Gokool Nath Guha v. Issur Lochun Roy ILR. 14 calcutta 222. In that case, the testator by his will directed that the executors should get a Shiva temple erected at a reasonable cost in a suitable place within a compound on which he had resided. The amount to be spent for the construction of the temple was not mentioned in the document, nor the size or the nature of the building was indicated therein. The court held that the direction was not void for uncertainty and that an allotment of 3 per cent of the testator's movable estate set apart by the trial court was a proper sum for the construction of the temple and execution of the trust. The decision of the high Court of Allahabad in Ghazanfar Husain v. Mt. Ahmadi Bibi AIR. 1930 allahabad 169 also supports the above view. In that case, the court said: "there is nothing in the Mahommadan law to invalidate a wakf, where the objects of the endowment are clear and certain, simply for the reason that no certain portion of the property or specified amounts of the usufruct have been dedicated to charity or other religious, pious or charitable purposes of a permanent character recognised by the mahomadan Law. "
(3.) THE learned counsel for the appellants referred me to a decision of the Privy Council in Mujib-un-Nissa v. Abdul Rahim and another ilr. 23 Allahabad 233 in support of his contention. In that case, the document which described itself as a deed of family endowment, declared that the income and profits of the property, after defraying the necessary expenses according to the provisions in the deed, should be applied to charitable purposes. THE privy Council held that the above provision did not create a charitable trust; and the reason for its decision was stated as follows: "on the terms of the deed itself, therefore, their lordships held that the property is not is substance dedicated to charitable purposes, but on the contrary is dedicated substantially to the maintenance and aggrandisement of the family estates for family purposes. THE deed, therefore, could not be supported as constituting a wakf. " This decision has been referred to by the Privy Council in Ramanandan Chettiar v, Vava Levvai Marakayar ILR. 40 Madras 116 and it does not help the contention of the appellant's learned counsel. He also referred me to a decision of the Allahabad High Court in Md. Shafiq Ahmed v. Md. Mujtaba air. 1928 Allahabad 660 (2 ). That was a case of a private trust; and the decision cannot, therefore, support the appellant's counsel. In the result, I hold that Ext. B-1creates a valid wakf under the Muhammadan Law, and that the plaintiffs are not entitled for partition of the plaint properties. This Second Appeal, therefore, fails and is accordingly dismissed. In the circumstances of the case, the parties will bear the costs of this appeal.;


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